An Equitable Framework for Humanitarian Intervention

ISBN-13: 9781849464048 / Angielski / Twarda / 2013 / 398 str.

Ciaran Burke

Opis

Can there be a resolution as to whether armed intervention is ever legally justified as a response to gross human rights violations without UN Security Council authorization? Thus far, international lawyers have been caught between giving a negative answer on the basis of the UN Charter's rules ('positivists') and a 'turn to ethics, ' declaring intervention legitimate on moral grounds while eschewing legal analysis ('moralists'). In this book, a third solution is proposed. The idea is presented that many equitable principles may qualify as 'general principles of law recognized by civilized nations' - one of the three principal sources of international law (though a category that is often overlooked) - a conclusion based upon detailed research of both national legal systems and international law. These principles, having normative force in international law, are then used to craft an equitable framework for humanitarian intervention. It is argued that the dynamics of their operation allow them to interact with the Charter and customary law in order to fill gaps in the existing legal structure and soften the rigors of strict law in certain circumstances. It is posited that many of the moralists' arguments are justified, albeit based upon firm legal principles rather than ethical theory. The equitable framework proposed is designed to provide an answer to the question of how humanitarian intervention may be integrated into the legal realm. Certainly, this will not mean an end to controversies regarding concrete cases of humanitarian intervention. However, it will enable the framing of such controversies in legal terms, rather than as a choice between the law and morality. The book contains an interesting and unique point of reference for all those interested in the field of humanitarian intervention. (Series: Studies in International Law - Vol. 45

Spis treści

Introduction 1 The Humanitarian Intervention Discourse: A Debate on the Edges of the Law I. General Introduction II. Historical Introduction III. 'Kosovo' as an Illegal Operation IV. 'A Thin Red Line' – The Argument of 'Near-Legality' V. 'Contemporary Trends' and the Reform of Customary International Law VI. Legal Inadequacy and 'Solidarist Intervention' VII. 'A Custom More Honour'd in the Breach than in the Observance' – The Turn to Ethics VIII. Illegal International Law Reform: Ethics in Action IX. Necessity as the Mother of Invention X. Taking Human Rights Seriously? From Just War to Neo-Imperialism XI. Obscuring the Law XII. The Responsibility to Protect XIII. Conclusion 2 The Third Source of International Law I. Introduction II. Article 38(1) as the Wellspring of International Legal Sources III. General Principles of Law in the World Court IV. Conclusion 3 Equity as 'General Principles' in the Legal Systems of 'Civilised Nations' I. Introduction: A Bayonet to Prick the Conscience II. Legal Rigidity as the Crux of the Problem III. Equity outside the English Common Law Model IV. The Common Core of Equity V. Conclusion: Equity as a Hallmark of 'Civilised' Legal Systems 4 Equity in International Legal Practice I. Introduction II. Equitable General Principles in the Judgments of the World Court III. Equity by Analogy – The Third Category of the Third Source IV. Conclusion 5 A Framework for Equitable Humanitarian Intervention I. Introduction II. The Relationship between Equity, General Principles and Other Sources of International Law III. The Third Exception? International Equity and Humanitarian Intervention IV. Conclusion Conclusion I. Libya 2011 II. Syria 2012 III. To Be or Not To Be?